Once upon a time, it was common
to respond to originalist arguments in constitutional interpretation by arguing
that even the framers themselves were not originalists. And if they were not,
how could or why should we be? Exhibit A for this argument was H. Jefferson Powell's
The Original Understanding of Original Intent, which pointed to many
places that prominent framers had denied that their own subjective intent was
dispositive of the document's true public meaning.

This Exhibit worked against
"original intent" originalism, but as originalist thought became more
careful and rigorous, most originalists came to agree that original meaning was
controlling, not original intent. In other words, todays originalists share the
position of the framers in Powell's article, so there was no mismatch between
originalism and the framers.

But now along comes an important
and fascinating new book from Jonathan Gienapp, The Second Creation, which threatens to pose a new and deeper
version of this problem for today's originalists. In Gienapp's telling, the
framers did not agree that the Constitution was a written legal text, that it
was complete, that its meaning was fixed, or that it was subject to specific
rules of legal interpretation. All of these things were subject to contestation
throughout the 1790s. The emergence of the fixed, written, legal Constitution
emerged only contingently and years after the Founding.

If Gienapp is right, what are
originalists to make of it? As Jack suggests in his earlier post, the
answer may depend on why one is an originalist in the first place.

Those who defend originalism on
abstractly conceptual grounds might argue that this result does not matter. If
one thinks that fixation is a general principle of written texts, then perhaps
the framers adopted a fixed Constitution regardless of whether they meant to or
were aware of it. It's just in the nature of things that writing down
constitutional principles would result in a fixed Constitution that should be
interpreted using originalism.

Similarly, those who think that
originalism is commanded by particular textual provisions of the Constitution,
such as Supremacy Clause or the oath, might argue that Gienapp's findings do
not matter. The framers may have committed to originalism through the text they
chose whether or not they ever saw it.

On the other hand, the very
debates and contingency that Gienapp recounts might give us some pause before
accepting either of these arguments. If it is perfectly imaginable -- if it was
indeed imagined by some -- that our written Constitution might not have a fixed
and complete meaning, then perhaps we should be reluctant to think the text
settles the matter.

Those who defend originalism on
purely normative grounds might also argue that it does not matter whether the
founders were originalists. If the goal of originalism is to constrain judges,
for instance, it might constrain them just as well whether the framers used it
or not. Indeed, maybe other changes in society or law (the growth of judicial
review, changes in elite culture) have made it more important for us to
constrain today's judges than it was for the Founders to constrain
theirs.

But some of us take a different
view -- I would say the right view -- that originalism is a
theory of law, not language or policy: Our current law tells us to
adhere to the framers’ law, as lawfully changed. Gienapp presents an important
challenge to this theory of original law originalism.

If there was no original law, so
far as the Constitution is concerned, then the original law theory points to an
empty set. If the Constitution was not truly created as law until years after
its official ratification, then we have the kind of newly discovered mismatch
between official story and revealed truth that should provoke a constitutional
crisis. A strong version of Gienapp’s thesis could mark a true interpretative
revolution.

But before we original law
originalists pack it in, there are some questions that will require further
study and engagement with Gienapp’s research. Depending on the answers,
original law originalism might still be alive and well.

First, how much true division do
these episodes reveal? Gienapp describes several important debates in which
prominent people disagreed about the nature and status of the Constitution. But
the existence of disagreement alone does not show a lack of established rules.
For originalist purposes the depth and breadth of that disagreement will be
important too. For instance, some may think that the early skirmishes simply
prove the dominance of public meaning originalism, because they ended so quickly
and so definitively.

Second, were the disagreements
about law or something else? Early disagreements about constitutional law
touched on a number of fundamental questions. But not every fundamental
disagreement is a disagreement about what the law was. For instance, it is
possible for two people to agree about a fundamental legal principle (ambiguous
documents should be construed to effectuate their purposes) while still
disagreeing about the application (what was the document’s purpose?).

Or participants can agree about
what a legal instrument requires but disagree about whether they are actually
going to follow it. Indeed, when governed by the Articles of Confederation,
some of the same folks ignored its strictures in the name of practicality and
necessity. So perhaps what was up in the air in some of these cases was not so
much the law of the Constitution as the question of whether this time it was
going to be taken more seriously.

Third and finally, if we do
grant that some issues of the original law of the Constitution were fundamentally
unsettled, originalists could still believe those issues are settled now. Originalism is
fundamentally a theory of legal change, not one of stasis. The
Constitution’s meaning can change if it changes in a lawful way, such as
through a constitutional amendment. And it is quite plausible that the founders
recognized other methods for settling constitutional meaning, such as James Madison’s
account of “liquidation” through deliberate practice. If the
original law allowed liquidation, then maybe the fundamental questions were
quickly “liquidated” and have remained settled ever since.

Readers should consider this
post a promissory note for a longer work in progress exploring the original law
of the Constitution. A book as deep and important as Gienapp’s will take study
and precise analysis before all of its implications are settled. In that respect,
The Second Creation may fittingly
resemble the fate of the Constitution itself.

William Baude is Professor of Law at the University of Chicago Law School. You can reach him by e-mail at baude@uchicago.edu